Legal Commentary and Analysis

For the second time in less than a year, the California Supreme Court will decide whether to reject the votes of millions of Californians regarding marriage. Proposition 8 implemented an amendment to the California Constitution that states, “Only marriage between a man and a woman is valid or recognized in California.” It passed by a margin of approximately 5 percent in November 2008.

. . . Twice, a clear majority of the voters have spoken on this issue; the first time, four justices ignored their voice and stamped their own personal persuasions on the law.

So a ruling against marriage again would not just neuter the uncomfortable legal impact of Proposition 8 – it would effectively reduce every future state election to a straw poll. The Legislature has already shown itself openly hostile to the will of the electorate; the governor has turned a deaf ear to a majority of those who put him in office. Now the state’s highest court will decide if the people of California have a constitutional right to amend their own constitution. At this point, the people have a right to ask: Does the government of this state exist to serve the voters and understand their will, or are the people merely the pawns of an increasingly authoritarian government? . . .

At some point in their lives, most Americans have studied history. In so doing, we inevitably learn something that we previously did not know. We study and embrace history, erect memorials regarding it, and record it in the hopes of avoiding having it repeat itself. When we need a glimpse of the future, we need only to look to our past. Let’s embark on a history lesson with regard to the great debate in Hawai’i over “civil unions.”

Conservative opinion leaders must recognize that the illegitimacy of the rampant judicial constitution- making that is before their eyes changes all the old rules about the place of amendments in our polity. The comfortable shibboleths about a heavy presumption against amending the Constitution no longer have much relevance to the brute facts of our political life. So profound is the departure from a republican form of government that the presumption must now be in favor of amending the Constitution whenever the Court runs wild. Homosexual marriage presents just such an occasion, but if our politicians wait until the Supreme Court has done the inevitable, it will probably be too late for an effective response. Catastrophes ought not to be faced in a spirit of resignation.

There are various ways in which same-sex “marriage” might spread across the country. The first is piecemeal: one state at a time–similarly to how no-fault divorce laws spread during the 1960s.

Secondly, same-sex “marriage” might also spread by the migration of couples demanding recognition of their Massachusetts vows in other states; or finally, by a Supreme Court opinion declaring that the Constitution requires the recognition of their union.

As things now stand, the Supreme Court will have the last word on whether there is a constitutional right for two persons of the same sex to marry, as well as whether there must be interstate recognition of such unions. The only way to ensure that the Court as well as state judges and legislatures do not provide legal recognition of same-sex “marriage” is to amend the U.S. Constitution.

The chart that follows describes three kinds of developments in the states – legislation moving through the statehouses, ballot initiatives, and pending litigation. It now also contains any state-specific polling that has been done on the subject.

A lot of people don’t understand why the ACLU and other groups working on equality for LGBT people haven’t just gone into court everywhere to get same-sex couples the ability to marry. But there are good reasons not to do that. . .

Bottom line: The best way to win the marriage for same-sex couples is to win in as many states as we can before we head to the Supreme Court . . .

Right now, poorly thought-out lawsuits stand to do far more harm than good to the LGBT community. We must be smart about when, where, and how we file lawsuits demanding marriage equality.

The Augustinian Goods of Marriage: The Disappearing Cornerstone of the American Law of Marriage
Charles J. Reid, Jr., 18 BYU J. Pub. L. 449 (2004)

This Article has several related concerns: it is, first of all, an historical investigation into one of the principal, if unacknowledged, sources of American juristic thought on marriage–the work of St. Augustine, the fifth-century North African bishop and doctor of the Church, who identified as the three essential elements of the marital relationship procreation, fidelity, and lifelong unity, or permanence . . .

This Article is divided into four sections. Part II tells the story of the development of the Augustinian goods of marriage and their transmission to the modern era. Part III considers the crystallization of this set of ideas in the work of nineteenth-century American commentators and courts. By and large these scholars and judges never mentioned St. Augustine. But they nevertheless continued to operate in a mental universe shaped to a considerable extent by Augustinian ideals. Part IV then considers in some detail the implications of the same-sex marriage decisions of Baehr v. Lewin and Baker v. State for marital theory. Finally, Part V provides a brief conclusion.

In Defending Marriage: Take the Offensive
Focus on the Family, James Dobson, April, 2004

President Bush’s endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making. “After more than two centuries of American jurisprudence and millennia of human experience,” he explained, “a few judges and local authorities are presuming to change the most fundamental institution of civilization . . . ”

A common initial reaction to these local measures has been: “Why should I care whether same-sex couples can get married?” “How will that affect me or my family?” “Why not just live and let live?” But as people began to take stock of the implications of granting special treatment to one group of citizens, the need for a federal marriage amendment has become increasingly clear.